VCAT Volume 10 No 7

1. Interpretation of B21 and how to calculate overshadowing impacts

Standard B21 of the Overshadowing open space objective states:

Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9 am and 3 pm on 22 September. 

If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced.

In Ling v Whitehorse CC [2023] VCAT 307, the following question of law was considered:

What is the correct construction and meaning of Standard B21 in clause 55.04-5 – Overshadowing open space objective of the Whitehorse Planning Scheme?

Other cases where the interpretation of B21 has been discussed include:

Consistent with the principles of statutory construction, the Tribunal considered that the correct construction and meaning of the whole of Standard B21 should start with the text of Standard B21 having regard to its context and purpose.

The Tribunal held that the correct construction of Standard B21 is that the existing shadow cast on affected secluded private open space areas throughout 22 September must first be assessed to determine whether the requirements of Standard B21 (contained in the first paragraph of that standard) are met.

If it was found that the existing sunlight to the secluded private open space of an existing dwelling “is less than the requirements of this standard”, then the second paragraph of Standard B21 states that “the amount of sunlight should not be further reduced”.

The Tribunal considered that the phrase “the amount of sunlight should not be further reduced” is unqualified by either a temporal component or a locational component. Thus, there was no reason to read into the second paragraph of Standard B21 any words of limitation. If it were the intention to limit the phrase “the amount of sunlight should not be further reduced”, it stated that this could have very easily been done by the draftsperson by inserting the time of the day during which sunlight should not be further reduced or the minimum number of hours access to sunlight should be provided.

Further, the Tribunal considered the phrase “the amount of sunlight should not be further reduced” is not comprised of technical words or constitutes a composite phrase that has attained a particular meaning because of its use by people skilled in a particular industry.

There was nothing ambiguous about the phase “the amount of sunlight should not be further reduced”. The plain English literal meaning of that phrase is that the amount of sunlight should not be further reduced at any hour of the day.

It also considered that there was no warrant to read at the end of the phrase ‘at all’ so that phrase reads “the amount of sunlight should not be further reduced at all” as the words ‘at all’ are superfluous and do not add anything to the plain meaning of the phrase.

The above approach is consistent with Monarco. The Tribunal disagreed with the approach in Ellis, stating that such a reading would be ‘too onerous’ and not the basis on which the standard relies, because:

  • It is not the role of this Tribunal to determine, or speculate on, what would be ‘too onerous’ on a particular group of stakeholders in the planning approvals process regulated under the Planning and Environment Act 1987 and planning schemes. The task of developing planning policy is one for the Victorian government and responsible authorities.
  • The plain English and literal meaning does not lead to an inharmonious, absurd or unjust outcome when considered in its context (both generally as part of Clause 55 and specifically as part of Clause 55.04) and in light of the specific purpose of Clause 55.04-5. To the contrary, it facilitates and achieves the very process contemplated generally under Clause 55 and specifically under clause 55.04-5 and leads to a reasonably practicable result.
  • Generally, the suite of provisions making up Clause 55 operate by the identification of ‘objectives’ that describe the desired outcome to be achieved by proposed development.
  • ‘Standards’ are prescribed that contain the requirements to meet the objectives to be achieved. It is expected that these standards ‘should normally be met’, however the operation of Clause 55 provisions also contemplate that there may be instances where the requirements of standards are not met but an alternative design solution (not prescribed in the requirements of a standard) may achieve the relevant objective. In essence the operation of Clause 55 allows for a performance-based outcome to be demonstrated.
  • Where the requirements of a standard cannot be met, and an alternative design solution is proffered for a proposed development, that alternative design solution must be considered against the decision guidelines of the relevant standard to assess whether the proffered solution meets the objective.

Having regard to its findings, the Tribunal identified a three-step methodology in applying B21:

  • Step 1 – Identify and accurately record the existing levels of sunlight enjoyed by affected secluded private open space areas throughout a specified day – 22 September. This is required under the second paragraph of Standard B21.
  • Step 2 – Compare the data obtained in the step 1 with the requirements of Standard B21 (contained in the first paragraph of Standard B21) to identify whether existing sunlight to affected secluded private open space areas is less than the requirements of Standard B21.
  • Step 3 – Before deciding an application, whether the requirements of Standard B21 contained in the first paragraph of that Standard can be met or not, the decision-maker must consider the matters outlined in the decision guidelines for Standard B21. In particular –
    • where an application seeks to reduce existing sunlight to the secluded private open space of an existing dwelling but maintains access to sunlight that meets the requirements of the first paragraph of Standard B21, then by meeting those requirements, the application will have met the objective of clause 55.04-5. This is because clause 55 provides that a standard contains the requirements to meet the objective.

The Tribunal’s comprehensive analysis in this matter, decided by a legal member as a question of law, may have settled the matter. Stepping out the methodology is also very helpful which practitioners may want to consider when assessing B21.

See also:

  • Guide to Planning Appeals: Amenity > Overshadowing

2. Tribunal confirms no third party right of appeal where no right to be given notice

There have been a number of cases in recent times where the Tribunal has addressed the question of the rights of third parties at appeal where third parties are not entitled to receive notice. It gets particularly challenging in cases where there are multiple permissions but some permission are exempt from notice and review.  Some of these cases are discussed in VCAT Volume 9 No 11. This issue was again recently addressed as a question of law in Clifftop at Hepburn Pty Ltd v Hepburn SC [2023] VCAT 201. Specifically, the question was:

What is the extent to which respondents can make submissions about matters relating to the Bushfire Management Overlay and other bushfire related matters having regard to the exemptions from notice, decision requirements and rights of review set out in Clause 44.06-7 of the Hepburn Planning Scheme?

The permit application was for the use and development of the land for a caravan and camping park (glamping) within 11 accommodation units. A permit was required for the proposal under the Farming Zone, Environmental Significance Overlay and Bushfire Management Overlay (BMO). (A permit was also being sought for business identification signage).

The Permit Applicant submitted that, having regard to the fact that there are no third party appeal rights under the BMO, the Tribunal should not entertain submissions from the Respondents in relation to bushfire matters. The Applicant’s position was that because a permit is required under the BMO, bushfire policy matters under Clause 13.02-1S that would otherwise be considered in the assessment of other permissions required under the Scheme are properly taken into account when determining whether to grant permission under the BMO. It posited:

The significance of the application of a BMO in relation to the policy at clause 13.02-1S is that in a bushfire prone area there will generally not be a permit trigger specifically relating to bushfire, but the Tribunal is required by policy to consider bushfire risk. Unlike the situation in a BMO, the guidance as to how that discretion should be exercised is not found in the Planning Scheme, but in “any applicable approved State, Regional and Municipal Fire Prevention Plan”.

The Council submitted that the Respondents are able to make submissions under the BMO because this was a review proceeding that was not brought under section 82 of the Planning and Environment Act 1987 (P&E Act), being the proceeding type that is referenced in the exemption contained in Clause 44.06-7 of the Scheme. It distinguished the Tribunal’s decision in West Valentine Pty Ltd v Stonnington CC [2005] VCAT 224 on the basis that the decision was made in the context of permission only being sought under a provision that was exempt from third party notice and review rights (our emphasis).

The Council also made points that:

  • In circumstances where notice of the application for review was given under four of the five permissions, the effect of section 83A of the P&E Act falls away because notice of the application was given to objectors.
  • The Respondents could also make submissions in relation to fire risk under other provisions of the Scheme, such as Clauses 13.02-1S, 53.02 and 65.
  • As such, there was nothing to preclude any respondent from referring to the policy contained in Clause 13.02-1S with respect to all permissions that are before the Tribunal, including the BMO.

The CFA also made submissions on the legal question, submitting that:

A number of the Respondents also made submissions that despite the exemption from notice and review under the BMO, they were able to make submissions on bushfire risk because of the existence of Clauses 13.02-1S, 53.02 and 65. Additionally, one Respondent submitted they had full rights to make submissions regarding the proposed use of the land under the Farming Zone and under the other permissions sought, particularly as access to land is often a key consideration when considering a use permission being sought in relation to land. Reference was made to Department of Environment, Land, Water and Planning v Yarra Ranges SC (Red Dot) [2019] VCAT 323 where the issue of access in high risk bushfire was critical to the Tribunal’s consideration.

In finding that the Respondents were not entitled to be involved in the Tribunal’s consideration of the permit trigger under the BMO through the making of submissions or the cross‑examination of any witness dealing with the BMO permission sought, the Tribunal stated:

…. clause 13.02-1S is only policy and needs to be applied in decision-making adopting the same approach as is applicable to any other policy in the Scheme. The relevance of its utilisation needs to be established through consideration of the purposes of the control being assessed and the decision guidelines for that control.

The policy in clause 13.02-1S can only guide in the exercise of the control being assessed and can only do so with regard being given to the purpose of that control: that is, what is the reason that the control exists in the Scheme and what function is it performing. In this respect, the policy is applied ‘through the lens of’ the permission being sought in the control. It is not appropriate for the policy to direct consideration to things that are not within the purpose or function of the control because that would mean that the policy is acting as the master of the control, rather than it being the servant of the control. [224-225]

The Tribunal quoted at length extracts of West Valentine Pty Ltd, including the following:

As a consequence of not being entitled to notice of an application by a permit applicant in respect of refusal, failure or conditions by reason of section 83A(2), an objector who is not entitled to apply for review under section 82 is therefore not a party to an application for review of a decision refusing to grant the permit or a failure to grant the permit or a decision imposing a condition on the permit. It would be strange if it was otherwise. The Act and the planning scheme provisions set out certain classes of applications for permit that are exempt from the notice and review provisions of the Act by third party objectors. It would be contrary to the purpose underlying these provisions if, by nevertheless submitting an objection, a person could thereby gain rights to be a party in applications for review other than one concerning a decision to grant the permit. [14]

Further, the Tribunal considered this approach is consistent with Brunswick Investment Project Pty Ltd which held that policy provides guidance to a decision that has to be made under the Scheme provisions.

The Tribunal then turned its mind as to how Clause 13.02-1S is taken into account in deciding the permission under the BMO:

Given the purposes of the BMO, there is a clear synergy between the content of the policy in clause 13.02-1S and the role of the BMO. As such, to the extent that the policy in clause 13.02-1S deals with any matters relating to risk to human life or property that go beyond what is covered in the BMO, it is appropriate to deal with those matters through the application of the policy in clause 13.02-1S in assessing the discretion under the BMO. This approach accords with what I have said earlier about the role of policy in decision-making.

It is in this way that the third limb of clause 13.02-1S – being the potential impact on the surrounding land as a consequence of the proposed use and development on the subject land that may create a bushfire hazard – will be taken into account through assessment of the permission sought under the BMO.

Accordingly, either way, the content of clause 13.02-1S will be taken into account in assessing the permission sought under the BMO. [235-237]

With respect to the permit trigger under the Farming Zone and the calling up of Clause 65 decision guideline on fire risk, the Tribunal held:

I acknowledge that arguably some of these decision guidelines, both in the FZ and in clause 65, could conceivably incorporate consideration of fire risk. However, the reason for looking at those decision guidelines is to guide the decision that needs to be made under the FZ, and that decision under the FZ is made through the lens of the purpose of the FZ.

Hence, to the extent that fire risk might be relevant to the use permission sought under the FZ, it would be with respect to the detrimental impact that fire may have upon the agricultural use of the Land and surrounding properties.

This is different to the objective of clause 13.02-1S, being:

To strengthen the resilience of settlements and communities to bushfire through risk-based planning that prioritises the protection of human life.

As such, the objective of clause 13.02-1S and the consideration of matters such as the risk to human health and to property as a consequence of bushfire risk under that policy are different to the extent to which fire risk might be relevant to the use permission sought under the FZ.

Finally, the Tribunal concluded that the parties should not hear from parties with respect to bushfire risk related matters “where there is what I regard to be a clear system that has excluded the involvement of third parties from a decision under the BMO, it would fly in the face of that explicit system to enable Respondents to be a party to the decision regarding the BMO by way of an order under section 60 of the VCAT Act.”

Clifftop at Hepburn follows many other cases in recent times that raise issues about extent and relevance of discretion and the National Trust principle. It would be interesting to assess these cases against the Supreme Court Court of Appeal decision of Boroondara City Council v 1045 Burke Road Pty Ltd & Ors [2015] VSCA 27, where it was stated [at 128]:

It follows that in giving weight to the matters which are required to be, or may be taken into account under planning schemes, it is principally for the decision-maker to determine which matters are of greater significance, and therefore should be given more weight, and which matters are of lesser or no significance, and should be given reduced or no weight in reaching the decision. Some matters listed in a planning control as matters for consideration may not be material in the individual case. In that event, the decision-maker having considered the matter may decide that the matter has no influence one way or the other in deciding whether a permit should be issued or whether conditions should be imposed.

See also:

  • Guide to Planning Appeals: National Trust principle > Relevance of specific clauses and decision guidelines in the planning scheme with control trigger

3. Should compensation be paid on an individual basis or whole of land basis?

The Western Grasslands Reserve is subject to a Public Acquisition Overlay (PAO) that was introduced via Amendment VC68 in August 2010. The Reserve is 15,000 hectares and sits in the Green Wedge outside the Urban Growth Boundary.

In AG Dennis Pty Ltd & Ors v Minister for Environment [2023] VSC 44, the Supreme Court considered a claim for compensation pursuant to ss 98(1)(a) and 106 of the Planning and Environment Act 1987 (P&E Act) for financial loss suffered as result of the Minister’s decision to apply a planning overlay which reserved the subject land for a public purpose.

The subject land comprises 20 titles covering 2,518.31 hectares. On 1 March 2019, the Applicants entered into a contract of sale to sell the subject land for $9.35 million. The Applicants claim that, absent the reservation of the land by the Minister, the subject land could have been sold on the relevant date at a higher price. The Applicants claim compensation for the difference between the amount the subject land was sold for (‘affected value’) and the amount for which the subject land could have been sold absent the reservation (‘unaffected value’). The parties disagreed on both the appropriate method for determining the unaffected value of the subject land and on the quantum of compensation owing.

The Court considered that the primary issue for determination is whether the Applicants are able to claim compensation under ss 98 and 106 of the P&E Act which is calculated on an individual sale basis. The Minister contended that the judgment of the Court of Appeal in Brompton Lodge Pty Ltd v Head, Transport for Victoria [2021] VSCA 302 requires the calculation of compensation to be premised upon a whole-of-land sale.

In rejecting the Minister’s submissions, the Court held that the P&E Act requires the financial loss suffered be the ‘natural, direct and reasonable consequence’ of the reservation of the land. The effect of  the PAO (as well as an Environmental Significance Overlay (ESO)) is to limit the possible uses for subject land to those compatible with the objective of preserving the Western Grassland Reserve. The Court considered this limitation had a direct impact upon prospective purchasers interested in the subject land and the market circumstances in which they may seek to acquire it.

The Court rejected the Minister’s contention that Brompton Lodge is authority for the proposition that determination of the unaffected value is to be determined by reference to the circumstances of the affected sale. Rather, Brompton Lodge is authority for the proposition that the affected price is determined by reference to the circumstances of the actual sale. The Court stated:

The whole-of-land sale of the Subject Land was a direct consequence of the reservation, which affected both the highest and best use and prospective market of purchasers of the Subject Land. In the unaffected scenario, the expert valuers regard the Subject Land as having a different highest and best use, namely for rural/agricultural or rural-lifestyle uses and some potential subdivision. This highest and best use attracts a different market of purchasers than in the affected scenario, who may be interested in acquiring the Subject Land on an individual sale basis rather than a whole-of-land basis. [50]

Another key issue in the case was whether the primary method of valuation is a direct sales comparison (‘DSC’) or  hypothetical development analysis (‘HDA’) approach. The Court commented that the appropriate method for the valuation of land will depend on the facts and circumstances of each case. It stated that in circumstances where there is a sufficient number and quality of comparable sales, a DSC may provide greater certainty than a HDA because a HDA is an analytical method which calculates the hypothetical value of subdivided land to a prospective developer based on numerous inputs (such as purchase and holding costs, development costs and the profit and risk margin). It noted that the value generated by a HDA depends on the accuracy of those inputs and if the inputs underlying a HDA are uncertain or speculative, the value generated by a HDA may likewise be uncertain and speculative. Whether a HDA is an appropriate method of valuation depends on the adequacy of the inputs which inform the valuation in a given case.

The Court held that a HDA valuation not to be appropriate in the present case because it generates an unstable and uncertain market value figure of the subject land.

See also:

  • Guide to Planning Appeals: Compensation

4. A boundary realignment or the creation of new lots?

In Kopp v Mornington Peninsula SC [2023] VCAT 285, the Tribunal considered a two lot subdivision that the Applicant claimed was a boundary realignment and therefore not subject to the minimum lot size requirements that apply in the Design and Development Overlay Schedule 3 (DDO3).

The subject land contains two lots with an east west orientation. The proposal was to provide for a generally north-south boundary so that each lot will have a distinct road frontage and be capable of being developed with a dwelling.

Council considered the new orientation would have a better planning outcome but considered that the proposed subdivision could not be considered a boundary realignment. Council submitted that:

To borrow a phrase from Judge Fagan in Crockett v Eltham SC 10 AATR 97, the proposal ‘obliterates’ the existing boundary and creates an entirely new boundary that bears no resemblance whatsoever to the existing boundary. The only similarity is that it continues to divide two lots…

The Tribunal found that:

I accept that whether a re-subdivision can be characterised as the re-alignment of the boundary between existing lots is not clear cut. This needs to be assessed on the facts of the particular case.

My principal finding in this case is that even if the subdivision could be properly characterised as a ‘boundary realignment’, it does not meet all the requirements for the first dot point of the exemption for a combination of reasons, including:

    • it is not limited to a realignment of boundaries ‘between existing lots’ – there is no existing shared boundary between existing lot 2 and the property to the south – the proposal would thereby create a new common boundary between these two properties rather than simply shifting the boundary between (two) existing lots;
    • I recognise that in a boundary realignment situation, there would not normally be the potential for an ‘additional lot’. In this context, the further proviso ‘no new lot’ in the exemption must be given some meaning. On balance, I find that the proposal would create a ‘new’ lot since:
      • the road frontage arrangements for lot 2 would fundamentally change, from dual access to both King Street to exclusive frontage to Georges Road. This would constitute a significant change to the common boundaries for Lot 2 – currently, that lot shares a common boundary with 37 King Street and 12 George Street as well as Lot 1. The common boundary with 37 King Street would be removed entirely and a new common boundary would be created with the property to the south, at 41 King Street;
      • it would create a lot with an entirely different orientation – from generally east-west to north-south. The lots were formerly ‘side to side’ but are proposed to be ‘back to back’;
      • none of the existing boundary would remain in situ; and
      • the width and proportions of the new block would be entirely different.

Although the exemption does not contain an express proviso that the realignment must not allow the number of dwellings the whole of the land could be used for to increase, another hallmark of lot 2 being properly characterised as a new lot is its fundamentally different capacity to host a new dwelling. This would have capacity to impact on the purposes of the overlay. [51-53]

Reference was made to a number of cases where the Tribunal considered similar terminology to DDO3. The majority of these consider the meaning of the words ‘a ‘subdivision which realigns the common boundary between two lots’ (as used in Clause 62.04), as distinct from reference to the ‘boundary between existing lots’ in the DDO. Such cases included Maino v Nillumbik SC [2006] VCAT 2129, Mooney v Yarra Ranges SC [2011] VCAT 1866 and Balderstone v Mornington Peninsula SC [2017] VCAT 737.

Sometimes there’s no getting away from the fact that planning controls will not always deliver the superior planning outcome.

In Voula Investments Pty Ltd v Mornington Peninsula SC [2023] VCAT 394, which also involved an application to realign the boundary between two existing lots, the Tribunal agreed with Kopp that at what point a proposal is no longer a boundary realignment and becomes a subdivision is not clear within the planning scheme. The land is within Design and Development Overlay Schedule 4 (DDO4) which contains exemptions to DDO3.

However, the Tribunal found that that the alteration of the rear part of this boundary is a significant change in direction that would mean that the proposal is not a boundary realignment and as such does qualify for the exemption under DDO4. It also found that the extent of change in the rear portion of the lot is too great to be considered a boundary realignment, but rather is a re-subdivision that creates two very different shaped lots.

See also:

  • Guide to Planning Appeals: Subdivision > Boundary realignment

5. Wind farm noise and the law of nuisance

Developments in the law of nuisance following a preponderance of claims about wind energy facility noise nuisance show no signs of abating.

In Trist v Glenelg Shire Council [2023] VSC 128, the Supreme Court the Plaintiff’s sought a judicial review following a Council’s decision not to give reasons and not to take steps under the Public Health and Wellbeing Act 2008 (PHWA).

The Council found that there was no noise nuisance arising from a wind farm.  The decision relates to two issues.  First, whether the fair-minded lay observer would apprehend that the Mayor was biased because she had sent a letter seeking legislative reform and, second, whether and when the obligation to give reasons arises in this context.

The Plaintiffs were the occupants of houses near the Cape Bridgewater wind farm, operated by Pacific Hydro Portland Wind Farm Pty Limited. They alleged that noise from the wind farm constituted a nuisance and required the Council to investigate. By Pt 6 of the PHWA, the Council was obliged to investigate any notice of a nuisance.

Following an investigation by the Council, including obtaining a noise consultant’s report, and receipt of submissions from the wind farm operator, the Council decided that there was no nuisance. The Council determined not to give reasons for its decision under the Administrative Law Act 1978 (ALA).

The allegation of bias was based upon a letter sent by the Mayor to the Minister requesting amendment of the PHWA.  The letter requested changes to Councils’ obligations to investigate nuisance complaints. The letter raised arguments about the cost involved in investigating such matters in addition to the broader burden on the Council. Subsequently, an amendment to the PHWA was made.

The Court applied the well-established test for ostensible bias including whether the fair-minded lay observer might consider that the Council, or the Mayor, might not have been impartial. The possibilities contained in the test must be real and not remote and the lay observer, as well as not being compliant, is also fair minded, reasonable and not unduly sensitive or suspicious. The suspicion of bias must be reasonably – and not fancifully – entertained by responsible minds.

The Court concluded that there was no bias in the letter, and that the fair-minded lay observer would not think that the Mayor might not bring an impartial mind to the question under consideration of whether the Plaintiffs suffered a nuisance.

The Court ordered that reasons for the Council’s decision were required because the Plaintiffs were persons ‘affected by a decision’ under s 2 of the ALA.  The Plaintiffs would have had a cause of action if the Council had determined that there was a nuisance.  As such, there was a decision that affected the Plaintiff’s rights justifying reasons.

See also:

  • Guide to Planning Appeals: Noise > Noise from wind turbines